CAFCASS launched but already in crisis

The speeded-up CAFCASS timetable set a real challenge for administrators, writes district judge Roger Bird On 2 April 2001 the Children and Family Court Advisory and Support Service (CAFCASS) came into being.

CAFCASS will perform the functions previously performed by the Divorce Court welfare officers, guardians ad litem in public law Children Act cases and that part of the Official Solicitors office which has dealt with cases involving children.

The intention is to bring these separate but related functions under one roof.This process of amalgamation has presented those responsible for administration with a formidable task.

Administration will be centred on local areas and units and so the existing arrangements have had to be changed to take account of the new administrative set up.

There has had to be a complete audit of all the buildings in which the various parts of the new service have until now carried out their functions a major task in itself.

Managers had to be appointed for the new areas and a central administrative centre established in London.

Because of the sudden availability of parliamentary time, this had to be completed a year earlier than originally planned, which has not made life easy.

The new service may employ salaried lawyers, which raised understandable fears that guardians solicitors would be replaced by a family version of the Crown Prosecution Service.

The government has gone to great pains to allay such fears for the time being but clearly eternal vigilance will be needed.A new service in crisisIt is intended that eventually those working in the new service (to be known as children and family reporters and childrens guardians respectively) will be able to move between the various roles and will be trained accordingly.

For the time being, they will continue with their present functions.However, the service has got off to a bad start with a dispute about guardians fees.

One of the potential problems of CAFCASS has always been that, whereas divorce court welfare officers are salaried, most guardians are self-employed and charge fees for the work they do.

Thus many guardians have earned considerably more than the welfare officers.

Now that they are colleagues in the new service these are two anomalies which would have had to be sorted out sooner or later.Unfortunately, the crisis came even before CAFCASS was in being and arose because the guardians are unhappy about the new level of fees which is being offered to them.

They say there could be a reduction of about one-third in their incomes leading to their having to take shortcuts to break even.

CAFCASS says that one of the problems is the attitude of the Inland Revenue.

Watch this space.

The sad aspect of all this is that most guardians are refusing to sign the new contracts, which could mean that there are now insufficient guardians to whom to allocate cases.New law Brussels IIThe advent of CAFCASS has been known about for some time.

The EU Council Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in matters of Parental Responsibility for Joint Children (known as Brussels II) crept up on most of us, and many will not know came into force on1 March 2001.

It is binding on all EU member states but Denmark, and applies to all proceedings filed on or after 1 March.The regulation deals with the jurisdiction of the court in matrimonial cases and in civil proceedings relating to parental responsibility for the children of both spouses.

Dealing first with matrimonial cases (for example, divorce), article 2 sets out a multiple choice of jurisdictional factors which do not have a hierarchy, that is to say, no one factor is more important than any other.

The factors are:l Both spouses habitual residence;l The last habitual residence of both spouses, one spouse still being habitually resident there;l The respondent spouses habitual residence;l In cases of a joint application, either spouses habitual residence;l Applicants habitual residence based on 12 months residence immediately before the application;l Applicants habitual residence based on six months residence immediately before the application coupled with nationality or (in the case of the UK or Ireland) domicile; and,l The nationality of both the spouses or, in the case of the UK and Ireland, their domicile.Where no member state has jurisdiction under the above factors, jurisdiction is determined according to the laws of each state.

These are matters which should not cause any problems for most petitions.

A moments thought shows that the vast majority of petitions which are filed are based on either domicile or habitual residence, and this will continue to be the case.

This would not require any change to the wording of the petition which would offend the existing Family Proceedings Rules 1991 (FPR).

For example, appendix 2 to the FPR makes certain requirements where it is alleged that the court has jurisdiction based on domicile and where it is alleged that the court has jurisdiction based on habitual residence: it does not prescribe the actual words to be used in the petition.

One can see immediately that both these common occurrences would be covered by the factors in the new regulation.

Therefore, the regulation is not inconsistent with the present FPR in that respect and no alteration would be needed in those cases.There may be problems where one of the other factors in the regulation applies.

For example, a spouse who has been habitually resident here for less than 12 months (if that were possible) could file a petition relying on article 2, may cause difficulty.

In anticipation of some of the problems, the Family Proceedings (Amendment No 1) Rules 2001 SI 2001/821 provide for a petition to state where it is alleged that the court has jurisdiction under the Regulation ..the grounds of jurisdiction under article 2(1) of the Council Regulation.

Amendments are also made to the notice of proceedings and the form of acknowledgement of service.

However, these amendments do not take effect before 3 September 2001, so practitioners and courts will have to improvise until then.One aspect of jurisdiction which is now completely lost is the bare domicile of a party which is not supported by one of the residence criteria: for example, a domicile of choice in a case of a party living outside the UK.

Brussels II and childrenAs to childrens proceedings, the rule is that prima facie, jurisdiction over the children of the spouses follows jurisdiction in the matrimonial proceedings.

But this is not automatic.

Article 3 provides that a court in a member state which has established jurisdiction in the matrimonial proceedings can then deal with the children provided they (the children) are either habitually resident in that member state or are habitually resident in another member state, at least one spouse has parental responsibility in relation to them, the jurisdiction of the court is accepted by both parties, and it is in the best interests of the children.

Where courts have concurrent jurisdiction, a court must defer to the court first seised of the case unless there is a need for protective measures in urgent cases.

A court is seised of a case when the documents instituting the proceedings or other equivalent document is lodged with the court, provided that steps are taken to serve it or, when it has to be served before issue, when it is received by the authority responsible for service.

And theres even moreThe regulation contains a number of other important matters which cannot be mentioned in detail because of lack of space.

Be aware that anyone concerned with forum disputes, recognition of judgments relating to parental responsibility, enforcement of such judgments and international child abduction will have to be familiar with the regulation.

Also, do not forget that if there are no matrimonial proceedings under way here and a child is habitually resident in another part of the UK, the courts of England and Wales must decline jurisdiction (pursuant to the Family Law Act 1986) except in cases involving variation of a previous order or protective measures.District Judge Roger Bird sits at Bristol Combined Court Centre